Drafting Effective Demand Letters: What Every Personal Injury Attorney And

DRAFTING EFFECTIVE DEMAND

LETTERS: WHAT EVERY PERSONAL

INJURY ATTORNEY AND

INSURANCE LAW ATTORNEY

SHOULD KNOW

Jonathan H. Lomurro, Esq., LLM Lomurro Law (Freehold)

Denise M. Luckenbach, Esq. Sellar Richardson, PC (Livingston)

Julia Talarick, Esq. Kinney Lisovicz Reilly & Wolff PC (Parsippany)

WCIV001916

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 E-MAIL: [email protected] Drafting Effective Demand Letters NJSBA August 17, 2016 Webinar presented by:

JONATHAN H. LOMURRO, ESQ. LLM JULIA C. TALARICK, ESQ. DENISE M. LUCKENBACH, ESQ. Certified Civil Trial Attorney Kinney Lisovicz Reilly & Wolff PC Monmouth Executive Center Certified Civil Trial Attorney 299 Cherry Hill Road, Suite 300 Sellar Richardson, P.C. 4 Paragon Way, Suite 100 PO Box 912 293 Eisenhower Parkway, Suite 350 Freehold, NJ, 07728 Parsippany, New Jersey 07054 Livingston, NJ 07039 Main: 732-414-0300 Main: 973-957-2550 Main: 973-577-7905 x212 Direct: 732-414-0319 Direct: 973-957-2556 Fax: 973-992-3232 Fax: 732-431-4043 Fax: 973-710-1054 E-Mail: [email protected] Email: [email protected] Email: [email protected] Website: www.sellarrichardson.com Website: www.lomurrolaw.com Website: www.klrw.law

et ut voiditigation

Attempt to influence the Recipient’s Perception of Risk

Agree…Resolve…Settle

Insurer’s Pre-Suit Response • Verification of Coverage • Limits • Notice issue(s) • Claim v. “Suit” • Self-insured retention • Multiple claims • Other coverage defense(s) • Reservation of Rights Insurer’s Pre-Suit Response • Notice to Insured • Potential excess exposure • Retention of personal counsel • Identification of excess insurer(s) • Notice to Other or Excess Insurer(s) • Retention of Coverage Counsel Insurer’s Pre-Suit Response • Policy language • Is there a duty to investigate? • Investigation • Hire investigator • Take insured’s statement • Review material submitted • Obtain publically available information • Retain defense counsel early Defense Counsel

• Evaluation of Claim • Identification of causes of action • Assessment of damages • Additional investigation • Retention of consultant/expert • Claimant/Counsel’s Presentation in Early Demand Letter • Over sell of claim • Prior suits/injuries Defense Counsel

• Client’s Concerns • Insurance issues • Panic • Exposure of assets • Involvement of personal counsel • Impact of well written demand letter • Productive discussion(s) Plaintiff Development of Facts Assessment of Liability/Defenses Injuries

Defendants Development of Facts Assessment of Liability/Defenses Injuries Insurer’s Mid-Suit Response • Single v. Multiple Claims • Discovery • Liability Defense(s) • Plaintiff’s comparative negligence CAMILLE COSBY'S DRAMATIC DEPOSITION TRANSCRIPT • Damage Defense(s) UNSEALED

• Defense Counsel Evaluations and UNDER OATH, DONALD TRUMP Recommendations SHOWS HIS RAW SIDE

THE CRAZIEST QUOTES FROM • Involvement of Personal Counsel THE PAULA DEEN DEPOSITION Offer to Take Judgment Rova Farms/Bad Faith Defense Counsel • Trial • Evaluation of strengths and weaknesses • Offer of Judgment

• Bad Faith – Failure to Settle • Rova Farms Resort, Inc. v. Investors Ins. Co. 65 N.J. 474 (1974) • Evaluation • Response • Informing client and insurer • Plaintiff’s and personal counsel Insurer’s Pre-Trial Response • Rova Farms, 65 N.J. 474 • Decision not to settle must be honest, intelligent and objective • Defense counsel’s evaluations • Anticipated range of verdicts • Strengths and weaknesses of all evidence (both sides) • History of geographic area in cases of similar nature • Parties/witnesses: appearance; credibility; appeal

• Response to Plaintiff’s and/or Personal Counsel

• Response to Other or Excess Insurer

Defense Counsel • Assessment of Verdict • Within or in excess of policy limits

• Identification of Errors • Applications of J.N.O.V. and/or new trial • Analysis for appeal

• Identification of Evidence Flaws Insurer’s Post Verdict Response

• Evaluations • Defense counsel • Motions: J.N.O.V. and new trial • Appeal • Monitoring counsel or claims professional

• Claim/File Review

• Notice to Insured, Personal Counsel and Other Insurers

• Retention of Counsel DISCLAIMER

The information contained in this presentation is for educational purposes only and should not be construed as legal advice, and is not intended to be a substitute for legal advice. The information contained herein is the opinion of the presenter and do not represent the positions or opinions of the presenter’s firm or clients. Email: E-mail Me

Ms. Luckenbach is certified as a Civil Trial Attorney by the Supreme Court of New Jersey and A.V. rated by Martindale Hubbell. She concentrates her practice in insurance defense, surety and fidelity matters (including fiduciary, public official, and other commercial bond claims), claims based in notary negligence, estate litigation, and general civil litigation, including construction defect claims and commercial/contract litigation.

Ms. Luckenbach is admitted to practice in New Jersey (1990), New York, the United States District Court for the District of New Jersey, and the United States Court of Appeals for the Third Circuit. She is a member of the New Jersey Bar Association, including both the Insurance Defense and Fidelity and Surety subcommittees. She is also a member of the Bergen County, Essex County, and American Bar Associations, the New Jersey Defense Association, the Defense Research Institute, the New Jersey Association for Justice, the American Judicature Society and the Morris Pashman Inn of Court. In 2007, she was appointed by the New Jersey Supreme Court to serve a four year term on the District V–B Ethics Committee which was renewed for a second term through 2015.

Ms. Luckenbach has lectured for New Jersey's Institute for Continuing Legal Education (ICLE) on Premises Liability claims, bad faith litigation, and primary/excess carrier duties and obligations. She is a frequent lecturer at the N.J. Bar Association annual meeting as a panelist on behalf of the Insurance Defense Committee. She is a published author in the area of Surety and Fidelity law having published “Defenses Available to the Probate Bond Surety” in The Law of Probate Bonds, (2001). She also serves as an Early Settlement Panel mediator for the Essex County Probate Court.

Ms. Luckenbach received her B.A., cum laude, and her J.D. from Seton Hall University where she was a member of the Moot Court Board. She clerked for the Honorable M.J. Kole, J.S.C., Bergen County, in the 1989 – 1990 court term.

Areas of Practice

Insurance Defense

Surety

Fidelity Matters (including Fiduciary, Public Official, and Other Commercial Bond Claims)

Claims based in Notary Negligence

Estate Litigation

General Civil

Construction Defect Claims

Commercial/Contract Litigation

Bar Admissions

New Jersey, 1990 New York, 1990

U.S. District Court District of New Jersey, 1990

U.S. Court of Appeals 3rd Circuit

Education

Seton Hall University School of Law, Newark, New Jersey J.D.

Seton Hall University B.A. cum laude

Published Works

"Defenses Available to the Probate Bond Surety", The Law of Probate Bonds, 2001

Classes/Seminars

Early Settlement Panel mediator, Essex County Probate Court

Professional Associations and Memberships

New Jersey Bar Association, Member, Insurance Defense Subcommittee

New Jersey Bar Association, Member, Fidelity and Surety Subcommittee

Bergen County Bar Association, Member Essex County Bar Association, Member

American Bar Association, Member

New Jersey Defense Association, Member

Defense Research Institute, Member

New Jersey Association for Justice, Member

American Judicature Society, Member

Morris Pashman Inn of Court, Member

Moot Court Board, Member

New Jersey Supreme Court, District V-B Ethics Committee, 2007 - Present

Past Employment Positions

Hon. Martin J. Kole, J.A.D. t/a, Law Clerk, 1989 - 1990

Sellar Richardson, P.C. 293 Eisenhower Parkway, Suite 170 Livingston, NJ 07039 Phone: 973-577-7905 Toll-free: 866-589-9887 Fax: 973-992-3232 Map and Directions

Sellar Richardson, P.C., is located in Livingston, New Jersey, and represents people across the state in areas such as Morristown, East Hanover, Florham Park, Roseland, Montclair, South Orange, Caldwell, Short Hill, Millburn, Summit, Wayne, Parsippany, Franklin Lakes, Alpine, Essex County, Morris County, Union County, Bergen County, Hudson County, Passaic County, Middlesex County, Somerset County and Warren County.

TO TOP • Home

• Attorneys Jonathan H. Lomurro

• Practice Areas

◦ Alternative Dispute Resolution

◦ Criminal Law "It is an honor to be a trial attorney—fighting for the injured, defending our rights and our system of justice. " ◦ Dangerous Drugs & Medical Devices Jon Lomurro

Jonathan H.◦ FamilyLomurro Law is a dedicated trial attorney. Jonathan handles matters relating to medical malpractice and personal injury.

After completing law school, he continued his focus on the craft of litigation by earning his LL.M. as a Master of◦ LawMedical in Trial Malpractice Advocacy.

Jonathan has authored three books on Legal Practice: New Jersey Medical Malpractice Law, Litigation Technology for the Modern Practitioner and Try It. ◦ Personal Injury Additionally, Mr. Lomurro is an extensive lecturer in the field of Medical Malpractice, Trial Techniques and Technology in the Courtroom. He has lectured for the New Jersey State Bar Association, the American Bar Association, the New Jersey Institute for Continuing Legal Education, New Jersey◦ AssociationWills & Estates for Justice, the Rutgers University School of Law, Haydn Proctor American Inns of Court and other Continuing Legal Education providers. Jonathan has frequently published articles on different aspects of medical malpractice, trial work and technology for the American Inns of Court, the American Bar Association, the New Jersey Law ◦ Workers’ Compensation Journal, the New Jersey State Bar Association, the Section of Litigation, the New Jersey Lawyer, and the New Jersey Institute for continuing legal Education.

Jonathan currently is appointed as the Chair of the Medical Malpractice Committee of the New Jersey State• BarVerdicts Association. & Settlements

Mr. Lomurro has served as Trustee to the New Jersey State Bar Association and as New Jersey’s representative to the American Bar Association House of Delegates. He is a past Chair to the New Jersey• NewsState Bar Association YLD. He is currently the president of the Haydn Proctor Inns of Court. He serves on the Board of Trustees for the Trial Attorneys of New Jersey and on the Board of Governors for the New Jersey Association for Justice.

Mr. •LomurroContact is Us a founding member and trustee of Lomurro Law Charitable Fund. Practice Areas

• Personal Injury • Medical Malpractice • Criminal Defense

Bar Admissions

• New Jersey, 2005 • S. District Court of New Jersey, 2005

Honors

• Named a New Leaders of the Bar by the New Jersey Law Journal, 2014 • Super Lawyer Rising Star, 2008-2016 • New Jersey State Bar Association Young Lawyer of the Year, 2011 • New Jersey State Bar Association Professional Achievement, 2009

Professional Associations

• President of Haydn Proctor Inns of Court • Chair of the Medical Malpractice Special Committee of the New Jersey State Bar Association • Board of Trustees of the Trial Attorneys of New Jersey • Board of Trustees of the New Jersey Association for Justice • Secretary of the Civil Trial Bar Executive Committee • Monmouth Bar Association • American Bar Association

Practice Areas

• Alternative Dispute Resolution • Criminal Law • Family Law ◦ Child Custody ◦ Child Support ◦ Divorce ◦ Domestic Violence ◦ Types of Child Custody • Dangerous Drugs & Medical Devices ◦ Bair Hugger ◦ Defective devices ◦ IVC Filter Litigation ◦ Knee & Hip Replacements ◦ Talcum Powder • Medical Malpractice ◦ Do I Have A Hip/Knee Case? • Personal Injury ◦ Car Accidents ◦ Construction Accidents ◦ Falling Objects ◦ Motorcycle Accidents ◦ Pedestrian Accidents ◦ Premises Liability ◦ Slip and Fall ◦ Tractor Trailer Accidents ◦ What Is My Personal Injury Claim Worth? • Workers’ Compensation ◦ Types of On the Job Injuries • Wills & Estates

Lomurro Law

Lomurro Law4 Paragon Way Suite 100Freehold, NJ 07728 732-414-0300Contact Us

CONTACT NEW JERSEY’S DEDICATED LAW FIRM FOR ALL YOUR PERSONAL INJURY, FAMILY AND CRIMINAL LAW NEEDS

At Lomurro Law, there is no case too big or small, too simple or complex. Our dedicated attorneys have the legal skills and experience you need to achieve the best possible resolution for your legal issue. We help clients throughout New Jersey with offices in Freehold, Toms River and New Brunswick. Call us at 732-414-0300 or contact us online to schedule a consultation today.

Office Locations

4 Paragon Way Suite 100 Freehold, NJ 07728

Map & Directions ➤ 16 Madison Avenue Building 2, Suite 2A Toms River, NJ 08753

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By Appointment Only 2 North Woodland Avenue East Brunswick, NJ 08816

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About Us

A commitment to learning, community service and providing the best service possible is what sets us apart.

Lomurro Law4 Paragon Way Suite 100Freehold, NJ 07728 732-414-0300

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Julia C. Talarick

Julia C. Talarick is a shareholder of the Firm.

Julia counsels and represents primary, excess, and surplus lines insurers, self-insureds and third-party administrators in claim handling, insurance coverage litigation, ADR proceedings, arbitrations, and bad faith litigation. She counsels captive insurers on policy terms, claim handling and litigation as well. She counsels a major insurance broker on annual filings, licensing, and issues involving insurance departments throughout the country.

She has defended insureds in a wide variety of cases including general negligence, product liability, construction defect, employment, pharmaceutical malpractice, truck stop liability/cargo loss, mold, underground storage tank and auto claims. Her work includes all phases of trial work including trial and appellate practice.

She is the immediate past chair of the New Jersey State Bar Association Insurance Law Section for the 2016-17 Term, and she served as chair of the Section for the 2015-16 term. She also serves as secretary of the Northern NJ Chapter of Claims Litigation Management. She served on District XA Ethics Committee from 2009 to 2014. Publications and Presentations

 Moderator, Overview, New Developments, and Ethical Considerations: Additional Insured Coverage and Contractual Indemnification (2016)

 "Is IMO Predictive of New Jersey Law on Below-Limits Settlements?" 2015 New Jersey State Bar Association, Insurance Law Newsletter (reprinted with permission).

 Presenter, The Big, Not So Easy – The Deepwater Horizon Coverage Decision (2015)

 New Jersey Supreme Court to Address Construction Defect Coverage Issues (2015)

 What You Need to Know About Additional Insured Coverage (2014)

 Don’t Confuse Contractual Indemnification with Additional Insured Coverage (2014)

 Hot Topics in Insurance Law 2014: Captive Insurance (2014)

 Bad Faith Claims (2014)

 Telematics: Friend or Foe-Benefits, Drawbacks & Hurdles (2013)

 Bill to Require Inclusion of “Faulty Workmanship” of Contractor in Definition of “Occurrence” in Commercial Liability Policies Introduced in NJ Assembly (2013)

 Use of Technology to Manage & Evaluate Risk (2012)  Criteria for Vehicle Liability, PIP and UM/UIM Coverage (2010)

 A New Era: Motor Carrier Coverage Form & CSA 2010 (2010)

 NJ Coverage and Liability Seminar: Additional Insured/Priority of Coverage Issues (2010)

 PIP and MEB Exposures under Commercial Auto Policies (2010)

 NY Appellate Division: Insurers Must Provide Operations Coverage for Asbestos Claims under Primary Policy (2009)

 Divided Supreme Court Holds No UM Coverage for Drive-by Shooting (2009)

 2007 Case Law Highlights in NJ Auto, General Liability and Workers Compensation Insurance and Tort (2008)

 Covered Auto Symbols in Business Truckers Auto Policies (2008)

 “Small Business Insurance Needs,” Garden State Women Magazine (2006). Co-Author. News

 Julia Talarick to speak at NJSBA Cyber Conference in June 2016

 Julia Talarick to participate in Fun Run for Special Olympics June 2016

 Julia Talarick to speak at NJBSA Webinar on Excess Demand Letters in August 2016

 Julia Talarick to speak at NJSBA Mid-Year Meeting in October 2016 on TRIA

Services

 Insurance

 Civil Litigation Education

 Seton Hall University School of Law (J.D., cum laude 1997)

 Kean University, cum laude (B.A. 1985) Professional Admissions

 State of New Jersey (1997)